Mohanan @ Onthu Mohanan, Santhosh, Sasi v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR WEDNESDAY, THE 25TH DAY OF JANUARY 2017/5TH MAGHA, 1938 CRL.A.No. 1943 of 2004 (C) --------------------------SC 393/2004 of ADDITIONAL SESSIONS COURT (ADHOC)-II, KOLLAM APPELLANTS/ACCUSED: --------------------------------- 1. MOHANAN @ ONTHU MOHANAN, S/O.PODIYAN, THYVELL THEKKETHIL VEEDU, NEAR PANCHAYATHUKULAM, VADAKKEVILA CHERRI, VADAKKEVILA VILLAGE. 2. SANTHOSH, S/O.SIVARAMAN, THYVEL THEKKETHIL VEEDU,, NEAR PANCHAYATHUKULAM, VADAKKEVIL CHERI,, VADAKKEVILA VILLAGE. 3. SASI, S/O.GOAPALAN, THYVELIKUNNATH VEEDU, NEAR KALAVEDI JUNCTION,, AYATHIL CHERRI, VADAKKEVIL VILLAGE. BY ADVS.SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENT/COMPLAINANT-STATE: -------------------------------------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. PUBLIC PROSECUTOR , SHRI C K PRASAD THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **B.SUDHEENDRA KUMAR, J.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - Crl. Appeal No.1943 of 2004 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 25[th] day of January 2017 ## JUDGMENT The court below convicted the appellants under sections 55(a) and 55(i) of the Abkari Act and sentenced them to rigorous imprisonment for two years each and a fine of Rs.1,00,000/- each under Section 55(i) of the Abkari Act. No separate sentence was awarded under Section 55 (a) of the Abkari Act. 2. The prosecution allegation is that on 29.9.99 at 6.00 p.m., the appellants were found in possession of five litres of arrack for the purpose of sale, in contravention of the provisions of the Abkari Act. Crl.A.1943/2004 : 2 : ## 3. Heard. 4. The learned counsel for the appellants has argued that even though the incident in this case was on 29.9.1999, the contraband articles were produced before the court only on 12.10.1999 and in the said circumstances, the appellants are entitled to benefit of doubt. It appears from Ext.P3 property list that the contraband articles and the sample were produced before the court only on 12.10.1999 even though the seizure was effected on 29.9.1999. No convincing explanation was given by the prosecution as to why there was delay in producing the contraband articles and the sample before the court. There is also no evidence with regard to the safe custody of the contraband articles and the sample till their production before the court. Since there was unexplained delay in producing the contraband Crl.A.1943/2004 : 3 : and the sample before the court, there cannot be any guarantee that the sample produced before the court and examined in the laboratory was the sample drawn from the contraband seized from the appellants, particularly when there was no evidence with regard to the safe custody of the sample till its production before the court and consequently, the appellant is entitled to benefit of doubt. 5. It is also to be noted that no forwarding note was marked in this case before the court. No forwarding note is also available with the records transmitted to this court, which would show that no forwarding note was prepared or produced before the court. 6. In Prakasan v. State of Kerala [2016(1) KLD 311], the court held thus:- Crl.A.1943/2004 : 4 : “Further in the absence specimen seal impression of the seal used for sealing the article having been produced in Court and in the absence of producing and marking the forwarding note which is expected to contain the specimen seal impression of the seal used for sealing the sample for the purpose of enabling the chemical examiner to verify and satisfy regarding the genuineness of the sample produced for examination, it cannot be said that the prosecution has proved beyond reasonable doubt that the articles were produced in Court in the same condition in which it was seized and it reached the chemical examiner's lab in a tamper proof condition and the chemical analysis report relates to the representative sample said to have been taken from the large quantity of contraband article alleged to have been seized from the possession of the accused. If this was not proved to the satisfaction of the Court, then it cannot be said that the prosecution had succeeded in bringing home the complexity of the accused in the commission of the crime and that benefit must be given to the accused.” Crl.A.1943/2004 : 5 : ## 7. In Sasidharan v. State of Kerala [2007(1)KLT 720], ## the court held thus:- “The thondy clerk, who was in charge of M.O. produced in court, was not examined nor was any proceedings prepared and produced in this case to show that sampling was done in this case. Without the link evidence of actual sampling by the concerned clerk of the court by drawing sample from the can and sending the same in a sealed packet to the Chemical Examiner with a specimen seal sent separately for tamper proof despatch, the Prosecution cannot be held to have brought home the offence against the appellant.” 8. The Division Bench of this Court in Ravi v. State of Kerala [2011(3) KLT 353] held that the prosecution in a case under the Abkari Act could succeed only if it is shown that the contraband liquor, which was allegedly seized from the accused, ultimately reached the hands of the Crl.A.1943/2004 : 6 : Chemical Examiner by change of hands in a tamper-proof condition. 9. In this case, the forwarding note was neither prepared nor produced before the court. Therefore, there is no satisfactory link evidence to show that it was the same sample drawn from the contraband seized from the appellant which eventually reached the hands of the Chemical Examiner in tamper -proof manner. Since the Forwarding Note was not produced or marked before the court, there is no link evidence to prove that the sample examined in the laboratory was the sample drawn from the contraband seized from the appellant and in the said circumstances, the appellant is entitled to benefit of doubt. For the said reasons, the conviction and sentence Crl.A.1943/2004 : 7 : passed by the court below cannot be sustained and consequently, I set aside the same. In the result, this appeal stands allowed, setting aside the conviction and sentence passed by the court below under Sections 55(a) and (i)of the Abkari Act and the appellants stand acquitted for the said offences. The bail bonds of the appellants stand discharged. Sd/- **B.SUDHEENDRA KUMAR, JUDGE** _dl/25.1.2017_ _// True Copy //_ _PA to Judge_